1. The standard of review applied to questions of the admissibility of evidence is abuse of
discretion.

2. Evidence properly ruled inadmissible at trial is not grounds for reversal, even if the
trial court relied upon incorrect reasoning in making its ruling.

3. K.S.A. 60-451 excludes evidence of subsequent remedial conduct for the purpose of
proving the defendant's negligence but permits the admission of such evidence when
relevant to prove other matters at issue in the case.

4. Subsequent remedial conduct is not admissible to rebut the defendant's evidence of
plaintiff's comparative fault, because, when no fault other than that of the parties is to
be compared, evidence that tends to exculpate the plaintiff of necessity places fault
upon the defendant.

RUSSELL, J.: In September 1997, Victor DiPietro traveled from his home in
Washington to Wichita, Kansas to pick up a business jet he had purchased from Cessna
Aircraft Company (Cessna). While at the Cessna Service Center, he met with a flight
instructor to obtain a special certificate so he could fly his new plane back to Seattle.
DiPietro and the flight instructor were conducting a preflight inspection of the aircraft when
DiPietro tripped over a curb and fell backwards into a concrete drainage ditch, fracturing his
lower right arm and wrist.

The aircraft was parked on a ramp area adjacent to the drainage ditch at the time that
DiPietro fell. He sued Cessna, claiming Cessna was negligent for failing to provide adequate
protective measures, such as a barrier, which would prevent customers from falling into the
drainage ditch. He further alleged the drainage ditch posed a dangerous condition of which
Cessna failed to provide adequate warning. Cessna defended by contending the ditch was an
open and obvious hazard, of which DiPietro was fully aware.

After DiPietro's fall, Cessna erected a fence surrounding the area of the drainage ditch
to prevent anyone else from falling into it.

The trial court ruled at the pretrial stage and again during trial that the subsequent
erection of the fence was inadmissible pursuant to K.S.A. 60-451. The case was submitted to a
jury, and the jury returned a defendant's verdict, finding Cessna 20 percent at fault and
DiPietro 80 percent at fault. DiPietro challenges the propriety of the trial court's rulings on
the inadmissibility of Cessna's subsequent remedial conduct in this appeal.

The admissibility of subsequent remedial conduct is governed by K.S.A. 60-451:

"When after the occurrence of an event remedial or precautionary
measures are taken, which, if taken previously would have tended to make
the event less likely to occur, evidence of such subsequent measures is not
admissible to prove negligence or culpable conduct in connection with the
event."

DiPietro argues that the trial court's rulings on the admissibility of this particular
evidence should be reviewed de novo by this court. In support of his argument, he cites
Glassman v. Costello, 267 Kan. 509, 517, 986 P.2d 1050 (1999), for its holding that
statutory
interpretation is a question of law, and an appellate court's review of questions of law is
unlimited.

DiPietro misapprehends the scope of the holding of Glassman.
Glassman does not
deal with the admissibility of evidence. Rather, it concerns the qualifications of an expert
witness under K.S.A. 60-3412, which is a purely statutory enactment. While it is true that the
common-law rules of evidence have been adopted by the legislature in Article 4 of Chapter 60
of the Kansas Statutes Annotated, the statutory enactment did not convert questions of
admissibility of evidence to questions of law subject to a de novo review.

"The standard of review applied to questions involving the admissibility of
evidence at trial is one of abuse of discretion. [Citation omitted.] Judicial
discretion is abused when judicial action is arbitrary, fanciful, or
unreasonable, which is another way of saying that discretion is abused only
where no reasonable person would take the view adopted by the trial court."
Smith v. Printup, 262 Kan. 587, 592, 938 P.2d 1261 (1997).

DiPietro filed a pretrial motion seeking to introduce evidence of the fence to rebut
Cessna's allegation of his comparative fault. The trial court made a preliminary ruling that
subsequent remedial conduct was inadmissible and directed plaintiff's counsel to make a
motion outside the jury's presence regarding the evidence if he believed developments at trial
made the evidence admissible for other purposes.

DiPietro attempted to bring in the evidence of the fence under two different theories
during trial. First, he argued Cessna's cross-examination of him opened the door to rebut
evidence of his comparative fault. Second, during DiPietro's direct examination of a Cessna
employee, testimony was introduced as to how high a fence might be erected without
hindering aircraft operations. DiPietro argued this testimony placed feasibility at issue, and
that feasibility creates an exception to the statute barring evidence on subsequent remedial
conduct.

When DiPietro argued during trial that evidence of the fence fell within the exceptions
to K.S.A. 60-451, the trial court stated:

"To me it's subsequent remedial conduct which is prohibited by the
statute, unless there's agreement among the parties. . . .[The s]tatute says not
admissible. I believe the only way I would allow it is if the parties agree it is.
Is there an agreement?"

The essence of the trial court's holding seems to be that evidence of subsequent
remedial conduct is never admissible, except by agreement of the parties. The trial court
spoke too broadly, as there are indeed exceptions to the general rule that prohibits the
admissibility of evidence of subsequent remedial conduct. Those exceptions that are
pertinent to this case are discussed below.

Even though the trial court misstated the criteria for admissibility of the evidence, we
find it was harmless error. Evidence properly ruled inadmissible at trial is not grounds for
reversal, even if the trial court relied upon incorrect reasoning in making its ruling, and
evidence wrongfully excluded will not be overturned unless it affirmatively appears from the
record the error prejudicially affected the substantial rights of the parties. Smith v.
Massey-Ferguson, Inc., 256 Kan. 90, 122, 883 P.2d 1120 (1994).

We first examine DiPietro's contention that the evidence should have been admitted
to prove the feasibility of erecting a barrier or fence. He correctly argues that K.S.A. 60-451
excludes evidence of subsequent remedial or precautionary measures taken by the defendant
after an accident for the purpose of proving the defendant's negligence but permits the
admission of such evidence when relevant to prove other matters at issue in the case. In
support of this position, he cites several Kansas cases: Schmeck v. City of Shawnee,
232 Kan.
11, 651 P.2d 585 (1982) (control); Siruta v. Hesston Corp., 232 Kan. 654, 666-68,
659 P.2d 799
(1983) (feasibility of alternate design in products liability case); and Huxol v. Nickell,
205 Kan.
718, 722-24, 473 P.2d 90 (1970) (responsibility for erecting barricade).

He primarily relies upon Siruta, arguing that Cessna placed at issue the
feasibility of
erecting a fence at that location. In that case, Justice Prager wrote: "We hold that where
evidence of remedial or precautionary measures is not offered to prove negligence or culpable
conduct, it is admissible when offered for other relevant purposes such as the feasibility of a
design change in a products liability case." 232 Kan. at 668.

We note that feasibility is a concept that developed out of products liability cases. We
decline to decide whether it should be extended to premises liability cases, as DiPietro urges,
because we find that the evidence upon which plaintiff relies to argue that feasibility had been
put in issue simply does not meet the Siruta prerequisites for admissibility. The
Siruta
opinion meticulously analyzes the circumstances in which subsequent remedial conduct
should be admitted to show feasibility of a design change.

In Siruta, defendant's motion in limine was granted, precluding plaintiff from
submitting evidence of subsequent design changes in his case in chief. It was not until after
defendant presented testimony of its own expert that a design change proposed by plaintiff
was not feasible that the court allowed the plaintiff to cross-examine defendant's witnesses
about subsequent design changes. The Supreme Court approved this method of determining
when subsequent remedial conduct should be admitted, holding:

"In other words, in the field of products liability the rule excluding evidence
of subsequent modifications has not been applied where such evidence is
offered to show the technological or economic feasibility of alternative
designs which would have prevented the injury. That is exactly the situation
which we have in the case presently before us. The trial court refused to allow
the plaintiff to admit evidence of subsequent design changes until the testimony of
defendant manufacturer's expert had raised the issue as to the technological or
economic feasibility of the design change suggested by plaintiff's expert."
(Emphasis added.) 232 Kan. at 667-68.

When we examine the context of plaintiff's attempt to offer evidence of the
subsequent erection of the fence, we find marked differences. First, the defendant did not
present expert testimony that erection of a fence or barricade was not feasible. The only
testimony that could possibly be construed as testimony that a fence was not feasible came
from a Cessna employee called by the plaintiff in his case in chief. The employee testified
that the proximity of the drainage ditch to a ramp on which aircraft were taxied around
meant that a fence of more than a "couple feet" would hinder aircraft operations because the
wing tips of certain planes might collide with the fence during landing or parking. He never
asserted that installation of a fence or any other protective barrier was not feasible.

Plaintiff argues that the fence that was actually installed was 31 inches in height, 7
inches more than 2 feet. Even if the testimony had not come in during plaintiff's case in
chief, we do not find that the minor discrepancy between the employee's testimony that a
fence a "couple feet" in height was feasible and the height of the fence actually erected to be
significant enough to trigger the need for the admission of evidence of subsequent remedial
action.

The trial court properly excluded the evidence of subsequent remedial measures
because the record shows the defendant never placed feasibility in dispute.

DiPietro next argues that evidence of Cessna's subsequent remedial conduct should
have been admitted to rebut Cessna's assertions of his comparative fault for his injuries.
Cessna affirmatively argued at trial the ditch was open and obvious and DiPietro could have
avoided the accident had he exercised due care. DiPietro argues that evidence of the fence is
highly probative to negate Cessna's claim and impeach the evidence brought forth at trial,
such as pictures of the scene prior to the installation of the fence and witnesses supporting the
theory that DiPietro knew or should have known of the danger.

Appellate courts in Kansas have not previously addressed this issue.

K.S.A. 60-451 prohibits evidence of subsequent remedial conduct by the defendant
only as used to prove negligence or culpable conduct. Huxol, 205 Kan. 718, Syl.
¶ 2. DiPietro
maintains his purpose in introducing Cessna's subsequent remedial conduct was to
demonstrate that he was not negligent in failing to see the ditch prior to the installation of
the fence. He contends that evidence of the fence will clarify the dispute as to whether the
ditch was an open and obvious danger, but will not show which party was negligent.

In premises liability cases, the duty of ordinary care is imposed upon business
proprietors to maintain the premises used by their customers in a reasonably safe condition.
Jones v. Hansen, 254 Kan. 499, 510, 867 P.2d 303 (1994). However, the duty is not
absolute
and the degree of reasonable care exercised by a landowner has limits. See 254 Kan. at 510. A
defendant's liability is reduced by the plaintiff's failure to exercise reasonable care in avoiding
an open and obvious danger pursuant to K.S.A. 60-258a, the comparative fault statute. See
Miller v. Zep Mfg. Co., 249 Kan. 34, 43-44, 815 P.2d 506 (1991). Under the
comparative fault
statute, the trier of fact considers each party's negligence when assigning the percentage of
fault. Fitzpatrick v. Allen, 24 Kan. App. 2d 896, 905, 955 P.2d 141, rev.
denied 264 Kan. 821
(1998).

Evidence of the construction of the fence tends to prove that the landowner, Cessna,
was more culpable than DiPietro, its customer. The process of determining comparative
fault, when only two parties are involved, is a "zero sum game." When negligence is moved
out of the plaintiff's column, it must move into the defendant's column. Evidence that tends
to exculpate plaintiff in a comparative fault case places fault upon the defendant, and evidence
of subsequent remedial conduct to prove negligence is prohibited by K.S.A. 60-451.

The policy reasons behind the prohibition against the admission of subsequent
remedial conduct are strong and sound. Evidence of safety upgrades and post-accident
precautions is very poor proof of negligence or defectiveness. Subsequent remedial measures
do not constitute admissions of culpability, and evidence of such conduct is inherently
unreliable. Exceptions to the rule should be allowed with great caution so the policy will
remain intact. In re Air Crash Disaster, 86 F.3d 498, 529 (6th Cir. 1996). The policy
behind
barring evidence of subsequent remedial conduct is to encourage potential defendants to
remedy hazardous conditions without fear that their actions will be used against them.
TLT-Babcock, Inc. v. Emerson Elec. Co., 33 F.3d 397, 400 (4th Cir. 1994).

We find no reason to override the sound policy considerations behind K.S.A. 60-451
to create an exception to permit the introduction of evidence to rebut defendant's allegations
of comparative fault on the part of a plaintiff. Evidence of subsequent remedial conduct to
disprove a plaintiff's comparative fault is inadmissible.